Recently, there has been some debate over whether the pleading standard for legal malpractice in criminal cases should be changed. Disparity
As it stands today, legal malpractice claims in criminal cases have a much higher pleading standard than those in civil cases.
The standard in civil cases is duty, breach, causation, and damages; whereas, the standard in criminal cases is ineffective assistance of counsel. This disparity becomes apparent in certain jurisdictions that require the criminal defendant to actually establish his or her innocence—a requirement that many believe is counter-intuitive. For instance, Evans v. Popkin, a North Carolina Court of Appeals case from 2019, did not result in a finding of criminal legal malpractice, even where the attorney failed to subpoena key witnesses, neglected to file critical motions, and sent false costs to the state’s Office of Indigent Defense Services.
Not all jurisdictions require a higher pleading standard for criminal legal malpractice. The Colorado Supreme Court, in Rantz v. Kaufman, rejected a variation of the actual innocence rule. The court expressed, “We see no reason why criminal defense lawyers should be afforded greater protection against liability for negligence than other professionals.”
In an article published by the ABA, one ethics expert expressed that a reason against lowering the standard for criminal legal malpractice is that, as it is, there are many frivolous accusations which contribute to a backlog of civil cases. However, a proponent of lowering the standard has acknowledged that, currently, some criminal defense attorneys do not carry malpractice insurance because they are not worried about malpractice lawsuits.
Florida’s requirement for a criminal defendant who wants to bring a malpractice claim against his or her attorney is as follows. He or she must prove his or her innocence in order to maintain a cause of action against the attorney, even if the criminal defendant plead guilty to a crime. See Rowe v. Schreiber, 725 So. 2d at 1249 (Fla. 4th DCA 1999).
